Employment Law

1. Week 9 Employment Law

2. Workplace Safety • The Occupational Safety and Health Act of 1970 (OSHA Act) set forth a standard that would provide for the safety and health of employees while on the job. • Employers are required to provide a place of employment free from occupational hazards. • Employees are required to follow rules established to promote their safety and to use equipment designed to ensure their safety.

3. What do you think? • Houston-based Piping Technology and Products, Inc. has been cited by OSHA for willful exposure of its employees to hazards in the workplace without safeguards. • The fine is $82,500. Specifically, the hazards include welding rays, live electrical parts, and flying particles. In a given year, OSHA conducts approximately 40,000 inspections. OSHA establishes and enforces standards. It ensures employees that their work environment will be safe and healthy. Questions • 1. Are fines the appropriate method for dealing with willful violations? • 2. Should criminal responsibility be against the corporate officials?

4. Inspections • Inspections of business premises and records may be made by OSHA compliance officers. • The employees and the employer may be questioned privately. Record keeping relating to occupational accidents and illnesses is required and must be produced upon demand. Exposure of employees to toxic chemicals must be documented. • Employees have the right of free access to the documents relating to their exposure. • If the level exceeds the occupational safety and health standard, the employer must immediately notify the employee and take corrective action. • If the employees believe a standard is being violated, they may notify the Secretary of Labor in writing. If the Secretary determines that there is a viable issue, he or she will authorize an investigation.

5. What do you think? • Dolores Wright, an employee of Green Bay Rental Apartments, is in charge of tenant complaints regarding lack of heat and hot water. Wright’s office is in a 3- story building located in the downtown section. In February, the building’s oil burner malfunctioned. Dolores made numerous calls to her superiors, but no action was taken. When Dolores called the oil company people, they said the burner needed to be replaced. It was not replaced. Of her own volition, she bought and paid for a heater, insulated her office, and continued to work through the month of February. At that time, she became ill with pneumonia and was hospitalized. Because she was a part-time employee, her employer did not pay for her medical plan. She thereupon sued Green Bay Rental for her medical bills, loss of compensation while she was hospitalized, and the expenses she incurred in attempting to make the office habitable during the month of February. Is she entitled to be reimbursed?

6. What do you think? • Yes! Green Bay Rental is liable for her medical expenses because it failed to provide her with a safe and healthy working environment. She is entitled compensation for the time she lost from work because the lost time was directly caused by the employer’s negligence. Also she is entitled to reimbursement for the expenses she incurred in attempting to create a healthy environment in the office.

7. Citations and Penalties • If an employer has committed a violation, an OSHA director will issue a citation, describe the particulars and reference to the occupational safety and health standard that the Secretary believes has been violated. • The employer has 15 business days to contest the citation or it will become a final order not subject to judicial review. • If the employer fails to correct the violation of a safety and health standard, a penalty will be assessed against the employer. The employer has 15 days to object to the penalty.

8. What do you think? • Stan Meyers was installing aluminum siding on a house, working on a platform 22 feet high. The platform was flat and had no guardrails. An OSHA standard requires guardrails to be installed on all platforms that are 10 feet or higher above the ground. Stan has asked his employer to install guardrails, without success. • Finally, Stan notifies OSHA, which sends a compliance officer to the work site. The compliance officer investigates and makes a determination that there is a violation of the OSHA standard regarding guardrails. The OSHA director then issues a citation. • Must the employer install the guardrails?

9. What do you think? The Boxer is a company that manufactures and recycles cardboard boxes. A mechanical forklift is used to carry and stack the flattened boxes. OSHA requires that all motorized vehicles emit a beeping sound when they are in reverse. • Forklift 17’s beeper is not functional, but the forklift is being used until Friday, when the repair is scheduled. On Wednesday morning, Ryan Madison has just turned a corner and is now walking in the aisle when forklift 17, operating in reverse, just misses hitting him. • Is The Boxer in violation?

10. What do you think? • Yes! The Boxer knew of the violation, because forklift 17 was scheduled for repair; an employee, Ryan Madison, was in proximity of the recognized hazard; and the potential for an injury to occur existed.

11. Worker’s Compensation • In return for absolute liability for injury or death, employers are immune from lawsuits for unintentional torts. When an injury occurs on the job, the employer is liable without regard to fault. It makes no difference whether the negligent act was committed on the part of the employee, employer, or coworker.

12. Worker’s Compensation Benefits • Employers save the time and expense of defending a lawsuit. • Employees receive immediate medical benefits, continued wage earnings, retraining, and death or disfigurement benefits, if applicable.

13. Reporting a Claim • An employee must report an injury to his or her employer and then file a claim with the Workers’ Compensation Board.

14. What do you think? • Peter Hallmark worked at Freedom Printing Press. One day, Sam Houseman, a coworker, caught his hand in a press. When Peter attempted to extricate Sam from his peril, Peter banged his head on the press and suffered a bad head injury that resulted in his death. Peter’s widow filed a claim with the Workers’ Compensation Board for Peter’s wrongful death. Sam filed a claim for the injury to his hand. • Will they be successful?

15. What do you think? • Yes! Fault is not at issue here. Peter may have been contributorily negligent. Sam may have been contributorily negligent in jamming his hand. • Freedom may have been negligent if the machine was not functioning properly. • All that matters is that the injuries occurred on the job. Freedom is liable for the medical expenses, loss of wages, death benefits, and a possible benefit for disfigurement depending on the severity of the injury to Sam’s hand.

16. What do you think? • Tom Woodstock was working on the third floor of a new office building. While walking along a beam, his attention was distracted when two waitresses came out of the Masters Restaurant across the street. Tom slipped off the beam and fell 30 feet. • As a result, he became quadriplegic. Tom filed a claim with the Workers’ Compensation Board for permanent disability. His employer, Build-Rite, claimed that Tom should have watched where he was walking.

17. What do you think? • Susan Hampton is a registered nurse. She applies for a position with the Midway Hospital. While Susan is undergoing a physical exam, it is discovered that she suffered a lower back strain. Midway refuses to hire Susan, although she can do the job required. Susan files a claim with the EEOC, alleging a violation of the ADA. Midway claims that eventually Susan will reinjure her back and file a workers’ • compensation claim. Will Susan win?

18. What do you think? • Yes! Midway is discriminating against Susan for a past disability. Although the odds may favor a reinjury, this is discrimination. • There is no way for Midway to guard against a future workers’ compensation claim by Susan if she reinjures her back.

19. What do you think? • On Saturn Salvage Company’s application for employment, candidates are asked whether they have previously filed for worker’s compensation. Saturn employs 42 workers. Saturn wants to know if this question is permissible because it is trying to reduce the number of its employees filing for workers’ compensation. How would you advise Saturn?